Medical Malpractice Victim Deemed "Too Prejudicial" to be Present for Her Own Case at Trial

Posted By Beam & Raymond || 19-Jun-2015

Supreme Court Reverses Decision on Appeal, Remands for New Trial

A Georgia trial judge decided that the physical attributes of a young girl with
cerebral palsy might cause too much of a stir among jurors at a trial for medical negligence,
and excluded her from being present during the proceedings. Her lawyers
disagreed, and took the case to the Court of Appeals.

The Court of Appeals affirmed that ruling, adopting a test used by the
United States Court of Appeals for the Sixth Circuit, which gives the
trial court discretion to exclude a civil party when the party's physical
and mental condition may generate jury sympathy and her mental condition
precludes her from meaningfully participating in and understanding the
proceedings. Quoting their decision, they recognized that:

Kyla was born with very low "Apgar scores," a gross assessment
of the infant's medical condition at specific intervals after birth.
Within a day of her delivery, Kyla had a brain ultrasound and CT scan,
neither of which revealed any injury. A week later, an MRI of Kyla's
brain revealed
damage to parts of the brain that control motor function. Kyla was eventually diagnosed with spastic
quadriplegia, a form of cerebral palsy. As a result of this condition,
Kyla is unable to control her movements and is confined to a special wheelchair,
she has a feeding tube inserted into her stomach, her airway must be suctioned
several times a day, she has bladder and bowel dysfunction, she suffers
frequent seizures, she has severely limited cognitive function, and she
cannot speak.

The Kestersons contended at trial that Kyla's neurological injuries
occurred when she was
deprived of oxygen just prior to birth. They argued that [Appellees Walter Jarrett, M.D.,
Athens Obstetrics and Gynecology, P.C., and St. Mary's Healthcare
System, Inc. d/b/a St. Mary's Hospital] were negligent in failing
to timely recognize the signs of fetal distress and that if Jarrett had
performed a Caesarean section earlier, Kyla would not have been injured.
The defendants argued that their actions did not fall below the standard
of care, that an earlier Caesarian section was not medically indicated,
and that Kyla's cerebral palsy may have resulted from something other
than an event that occurred during delivery.

Determining that her symptoms might cause undue juror sympathy and affect
the outcome of the trial, both courts refused to let young Kyla attend
her own case.

However, the Supreme Court of the United States didn't agree. In part,
they stated that:

The right of parties to be present in court when their causes are heard
is undoubtedly strong as a matter of federal law. See
Hampton, 282 Ga. at 491-492 ("The United States Supreme Court has long recognized that a criminal
defendant's right to be present at all critical stages of the proceedings
against him is a fundamental right and a foundational aspect of due process
of law.")

Kyla was excluded from most of the trial of her case because of concern
that her physical and mental condition would cause the jury to be biased
— unduly sympathetic toward her. The court noted that this was a
valid concern, but that it is also a common concern in tort cases where
the victim has suffered a physical injury due to the negligence of others.
Thus, they determined that jury instructions or a change of venue would
be more proper, and remanded the case back to the lower court for a new
trial in which Kyla could participate.

Instances of strong opposition in
birth injury cases are not uncommon. Defense attorneys will seek every advantage in trying
to deter families from seeking justice for injuries that their children
sustained at birth due to medical negligence. If your child has been the
victim of medical malpractice causing cerebral palsy, you may want to
contact a Chicago birth injury lawyer who has both the resources and the
experience to ensure that you and your family obtain justice.

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